Johnson v. Fox

• Decision Date: 17 January 1985
• Docket Number: No. 2-84-106-CV,2-84-106-CV
• Citation: 683 S.W.2d 214
• Parties: Jimmy F. JOHNSON et ux., Barbara Johnson, Appellants, v. Adolphus Glenn FOX, Appellee.
• Court: Texas Court of Appeals

Page 214

683 S.W.2d 214

Jimmy F. JOHNSON et ux., Barbara Johnson, Appellants, v. Adolphus Glenn FOX, Appellee.

No. 2-84-106-CV.

Court of Appeals of Texas Fort Worth.

Jan. 17, 1985.

M. Ward Bailey & Associates, and M. Ward Bailey, Fort Worth, for appellants.

Borden, Hand & Westhoff, and John E. Westhoff, Weatherford, for appellee.

Before FENDER, C.J., and BURDOCK and HILL, JJ.

OPINION

FENDER, Chief Justice.

This is an appeal from a judgment in a trespass to try title action involving a mineral reservation in a deed in which the trial court held that the mineral reservation was ambiguous, and then construed it favorably to appellee.

We reverse and reform.

On June 15, 1971, appellants, Jimmy F. Johnson and wife Barbara, purchased through the Texas Veterans Land Program 40.44 acres of land in Parker County, Texas. The grantors of the land, Edward W. Sears and wife, reserved a royalty interest, which in pertinent part states:

SAVE AND EXCEPT: Grantors herein reserve unto themselves, their heirs and assigns, an undivided 1/16th royalty (same being 1/2 of the usual 1/8) interest in and to all of the oil, gas, and other minerals, in, to, and under, or that may be produced from the land herein conveyed, ...

On June 17, 1974, appellants conveyed the 40.44 acres to Jack Julian Williams, et al. The deed contained the following reservation:

"SAVE AND EXCEPT one-half Mineral reservation as reserved in Warranty Deed dated June 15, 1971, recorded in Volume 500, page 123, Deed Records, Parker County, Texas. GRANTORS HEREIN reserve unto themselves, their heirs and assigns the remaining one-half mineral interest in and to the hereinabove described property."

Four years later, by deed dated April 15, 1978, Williams conveyed the land to appellee Fox, subject to the following mineral reservation:

Save and Except an undivided 1/2 of the usual 1/8 or 1/16 non-participating royalty interest reserved as set out in the Warranty Deed dated June 15, 1971, executed by Edward Sears, et ux, to Veterans Land Board, of record in Vol. 500, Page 123, Deed Records, Parker County, Texas. Also Save and Except Mineral reservation as set out in Warranty Deed dated June 17, 1974, executed by Jimmy F. Johnson, et ux, to Jack Julian Williams, et al, of record in Volume 582, page 436, Deed Records, Parker County, Texas, being a one-half ( 1/2) mineral reservation as described herein.

Approximately one year later, on April 6th, 1979, appellee Fox leased the land to Chester R. Upham, Jr., who agreed to pay appellee a 1/8 royalty on production. Although the record does not go into these transactions, it appears that appellee entered into the lease without notifying the appellants. It further appears that the appellants became aware of this lease a few months later, and at such time persuaded Upham to sign an identical lease with them covering the land in question. Because Upham was thus subject to double liabilities for royalties on the two leases, he placed in suspense the royalty payments due to appellants, and this action in turn caused appellants to bring this lawsuit to determine ownership of the royalties and the mineral estate.

In their trespass to try title petition appellants claimed to own "an undivided 1/2 interest or an undivided 1/16 royalty interest in and to all of the oil, gas, and other minerals in and under" the land. At the hearing, held in December, 1983, appellants introduced into evidence the 1971 deed from the original grantors to the Veterans Land Board, and the 1974 deed from themselves to Williams. Appellants also tried to testify as to their intent in the 1974 conveyance, but appellee objected on the ground that, no ambiguity having been pled by appellants, the trial court must determine title exclusively from an examination of the instruments in question. Appellee did not present any evidence of his own.

In his judgment the trial court held that appellants and appellee were each vested with a 1/2 mineral interest in and under the land and a 1/32 royalty interest. The trial court also subsequently filed findings of fact and conclusions of law. He concluded that the mineral reservation contained in the 1974 deed from appellants to Williams was ambiguous, and that rules of construction require that such ambiguity be construed against the grantor (appellants) and in favor of the grantee. (Appellee is apparently the grantee's [Williams'] successor in interest).

Appellants raise four points of error. In point of error number one they claim that the trial court erred in considering any question of ambiguity in the involved document, since none was raised by any affirmative pleading by the appellee or in the pleadings of appellants. In their second point of error appellants claim that the trial court erred in holding that appellants and appellee each own 1/2 of all the minerals subject to a pre-existing royalty interest. In their third point of error, the appellants urge that the trial court erred in not holding that appellants are owners of 1/2 interest in all minerals in and under the involved property and 1/16 of the royalties from the production of oil and gas. Finally, appellants claim that the trial court erred in failing and refusing to quiet title in themselves to 1/2 of the minerals in and under the involved property, and 1/16 of the royalties from the production of oil and gas.

In response, appellee argues in his brief that it was proper for the trial court to consider ambiguity because appellants raised the issue at the hearing. Furthermore, appellee contends that accepted rules of construction...